Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-11-03


of the condition of the case, and after some
further examination of the juror, which
ELECTED nothing of importance in connec-
tion with the present inquiry, do peremp-
tory challenges having been interposed by
the State. Sanford was sworn as Juror
and the panel was thus complete.
These, so far as we have been advised,
present all there is in the record which
this court consider touching the challenge
of these two jurors, by the defendants toT
cause. In Reynold vs. the --- SO U,
s. las to 156, it was decided by this court,
that in order 10 Justify reversal OF iudg
ment of the Supreme Court of the Territory
OF Utah, for refusing 10 allow challenge
to a Juror in criminal case on the ground
that he had formed and expressed an opin'
ion as to the issues TO be tried, IT must be
made clearly to appear that upon the evi
dence the court ought TO have found the
Juror had formed such an opinion, that
he could not in law be deemed impartial
The case must be one in which it is mani
fest the law left nothing to the conscience
or discretion of the court. If such is
the degree of strictness which is required
in ordinary cases Of -writs or one court tC
another, in the same general jurisdiction
we ought to he careful that il IS not at al
relaxed i'll case like this, when the
ground relied on for reversal by the court
Of judgment of the highest court of State
is that the error complained of is so great
as to amount in law to denial by the
State OF IL trial by an impartial jury TO one
who is accused OF crime. We are unhesi
tatingly Of the opinion that
NO SUCH CASE
is disclosed by this record
I'VE come now to consider the objection
that defendant Spies was compelled by the
voluntarily offered himself as witness in
his own behalf, and by so doing he became
bound to submit himself to a proper cross,
examination. The complaint is that hs
was required on CroSs-eXaminat on
to state whether he had received a certain
letter, which was shown, purpOrting tC
have been written by Johann Most, and
addressed to him, and upon his saying that
he had, the court allowed the letter to be
read i'll evidence against him. This, it is
claimed, was not proper cross examination.
1t is not cOntended that the subject tC
which the cross examination related was
not pertinent to the issue to he tried, and
whether cross examination must be con
fined to matters pertinent to the testimony
in Chiet, OF may be extended to the matter
in the issue is certainly II question of State
law in the Courts OF the State, and not OF
Federal law.
Something has been said in argument
about an alleged unreasonable search and
seizure Of the papers and property of some
OF the defendants, and their Use i'll evidence
on the trial of the case. Special reference
is made in this connection to the letter Oi
Most, about which Spies was crOss-exam
ined; but we have not been referred to any
part of the record in which it appears that
objection was made to the use oil the evidence
on that account, and upon this point the
Supreme Court of the State in that part Of
its opinion which has been printed with
this motion, remarks rs follows: Tht
objection that the letter was obtained from
the defendant by an unlawful seizure, is
made for the first time in this court. II
was not made on the trial in the COurt
below. Such an objection rs this, which il
not suggested by the nature of the Offered
evidence, but depends upon the proof of al
outside fact should have been made on
the trial. The defense
SHOULD HAVE PROVED
that the Most letter was one of the letters
illegally seized by the police, and should
then have moved to exclude, or oppose its
admission on the ground that it was oh,
tanned by such illegal seizure This was
not done, and therefore we cannot consider
the constitutional question supposed to be
involved. Even though the Court was
wrong in saying that it did not appear
that the Most letter was one of the papers
illegally seized, it still remains uncontra.
dicted that no objection was made i'll the
trial court, to its admission
on that account. To give us
jurisdiction under section 700 of the re-
vis ell statues, because of the denial of a
State court of any title or right or privi-
lege or immunity claimed under the Con.
stltutiOn, OF any treaty or statute of the
United States, il must appeal that such
title, right, privilege or immunity was
specially set up or claimed" at the
proper time and in the proper way. To
he renewable the decision must be against
the right 30 set up or claimed. As the
Supreme Court of the State was review.
ing the decision of the trial court to make
the question RENEWABLE, here it must ap.
pear that the claim was made
in that court because the Supreme
Court was only authorized 10 review
the Judgment Of that court for errors com,
mitted there, and we can do no more
This is not as it seems to he supposed by
one Of the counsel for the petitioners, a
question Of waiver of a right under the
constitution, laws or treaties of the United
States, hut question of claim. If not sci
up or claimed in proper court below, the
judgement Of the State Court in the action
is conclusive, so far as the right of review
here is concerned. The question, whether
the latter if obtained rs claimed, would
have been competent evidence, is not he
fore us, and, therefore, no foundation i:
laid under this objection for the exercise o.
our jurisdiction.
'As to the suggestion by counsel for pc
titiOners Spies and Fielden that Spies
having been born in Germany and Fielder
in Great Britain, they have been denied
by the decision of the court below, rights
GUARANTEED THEM By TREATIES
between the United States and the respect
i've countries, it is sufficient to say that nc
such questions were made and decided il
either of the courts below, and they car
not be raised in this court for the first time
We have not been referred to any treaty
neither are we aware of any under which
such question could be raised.
Being of opinion, therefore, that the
federal questions presented by the counsel
for petitioners and which they say they
desire to argue are not in fact involved il
the determination of the case as it appears
on the face of the record.
awe deny the writ"
The decision of the court is unanimous